TaxTMI 
TaxTMI 
2018 (9) TMI 1663
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....rred to as M/s. Mitsubishi). During verification, it was noticed from the records that the appellant is engaged in providing catering service to M/s. Mitsubishi from January 2005 onwards. The appellants were raising fortnightly bills on M/s. Mitsubishi for the sale of food for which payments were received by the appellant through cheques. It was also noticed from the accounts of M/s. Mitsubishi that the cost of transportation of food was borne by them. In other words, the appellant had made two separate collections one for supply of food and the other for transportation using separate invoices. According to department, the said activity would fall within outdoor catering service and show cause notice was issued proposing to demand service t....
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.... labourers. This fact has not been disputed by the department. The service element in outdoor catering service is catering to the need of the customer which includes serving the food. In the present case, there is only sale of the food which is delivered to the premises of M/s. Mitsubishi. The appellant does not cater to the individual needs of the customers at M/s. Mitsubishi nor do they serve food to the workers there. As such, no service is provided by the appellant. From the bills raised, it can be seen that it is mere sale of food. He relied upon the decision in the case of Tamil Nadu Kalyana Mandapam Association Vs. Union of India - 2004 (167) ELT 3 (SC) wherein in para 55, it is argued by the ld. counsel, that the Hon'ble Supreme Cou....
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.... Mitsubishi. It is also seen that the appellant engages in overseeing the activity at the premises of M/s. Mitsubishi. The appellant has raised two separate invoices one for supply of food and another for the transportation charges. Thus has evaded the payment of service tax under outdoor catering service. Since the appellant engages a person to oversee the activity at the premises of M/s. Mitsubishi, there is a service element and therefore the activity squarely falls under the purview of outdoor catering service. 5. Heard both sides. 6. For better appreciation, the definition of outdoor caterer service under section 76(a) is reproduced as under:- "caterer means a caterer engaged in providing services in connection with catering a....
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....ty of services apart from the service of allowing temporary occupation of mandap. As per Section 65(19) of the Finance Act, 1994, Mandap means any immovable property as defined in Section 3 of the Transfer of Property Act, 1882 and includes any furniture, fixture, light fittings and floor coverings therein let out for consideration for organising any official, social or business function. A mandap-keeper apart from proper maintenance of the mandap, also provides the necessary paraphernalia for holding such functions, apart from providing the conditions and ambience which are required by the customer such as providing the lighting arrangements, furniture and fixtures, floor coverings etc. The services provided by him cover method and manner ....
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....negotiates each element of the catering service, including the price to be paid to the caterer. Outdoor catering has an element of personalized service provided to the customer. Clearly the service element is more weighty, visible and predominant in the case of outdoor catering. It cannot be considered as a case of sale of food and drink as in restaurant. Though the Service Tax is leviable on the gross amount charged by the mandap-keeper for services in relation to the use of a mandap and also on the charges for catering, the Government has decided to charge the same only on 60% of the gross amount charged by the mandap-keeper to the customer." 6.2 Thus, the element personalized service is involved in outdoor catering. In the present cas....